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EXHIBIT 10.15
GOLDEN SKY SYSTEMS, INC.
CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
Employee Name: Xxxx X. Xxxxx
Date: August 24, 1998
In consideration of my employment by Golden Sky Systems, Inc. (the
"Company"), I, the above-named Employee, hereby agree with the Company as
follows.
1. Definitions
(a) Proprietary Information. As used in this Agreement,
"Proprietary Information" means information which the Company possesses or to
which the Company has rights which has commercial value. Proprietary Information
includes, by way of example and without limitation, trade secrets, product
ideas, designs, configurations, processes, techniques, formulas, software,
improvements, inventions, data, know-how, copyrightable materials, marketing
plans and strategies, sales and financial reports and forecasts, and customer
lists. Proprietary Information includes information developed by me in the
course of my employment by the Company or otherwise relating to Inventions which
belong to the Company under Section 4 below, as well as other information to
which I may have access in connection with my employment.
(b) Inventions and Developments. As used in this Agreement,
"Inventions and Developments" means any and all inventions, developments,
creative works and useful ideas of any description whatsoever, whether or not
patentable. Inventions and improvements which consist of or relate to any form
of Proprietary Information.
(c) Company-Related Inventions and Developments. For
purposes of this Agreement, "Company-Related Inventions and Developments" means
all Inventions and Developments which either (a) relate at the time of
conception or development to the actual or demonstrably anticipated business of
the Company or to its actual or demonstrably anticipated research and
development; (b) result from or relate to any work performed for the Company,
whether or not during normal business hours; (c) are developed on Company time;
or (d) are developed through the use of the Company's Proprietary Information,
equipment and software, or other facilities or resources.
(d) Company. For purposes of this Agreement, all references
to the "Company" will be deemed to include the Company and its direct or
indirect subsidiaries and affiliates.
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2. Confidentiality. I understand and agree that my employment creates
a relationship of confidence and trust between me and the Company with respect
to (a) all Proprietary Information, and (b) the confidential information of
others with which the Company has a business relationship. The information
referred to in clauses (a) and (b) of the preceding sentence is referred to in
this Agreement, collectively, as "Confidential Information." At all times, both
during my employment with the Company and after its termination, I will keep in
confidence and trust all such Confidential Information, and will not use or
disclose any such Confidential Information without the written consent of the
Company, except as may be necessary in the ordinary course of performing my
duties to the Company. The restrictions set forth in this Section 2 will not
apply to information which is generally known to the public or in the trade,
unless such knowledge results from an unauthorized disclosure by me, but this
exception will not affect the application of any other provision of this
Agreement to such information in accordance with the terms of such provision.
3. Documents, Records, etc. All documents, records, apparatus,
equipment and other physical property, whether or not pertaining to Proprietary
Information, which are furnished to me by the Company or produced by me in
connection with my employment will be and remain the sole property of the
Company. I will return to the Company all such materials and property as and
when requested by the Company. In any event, I will return all such materials
and property immediately upon termination of my employment for any reason. I
will not take with me any such material or property or any copies thereof upon
such termination.
4. Ownership of Inventions and Developments. I agree that all
Company-Related Inventions and Developments which I conceive or develop, in
whole or in part, either alone or jointly with others, during the term of my
employment with the Company will be the sole property of the Company. The
Company will be the sole owner of all patents, copyrights and other proprietary
rights in and with respect to such Company-Related Inventions and Developments.
To the fullest extent permitted by law, such Company-Related Inventions and
Developments will be deemed works made for hire. I hereby transfer and assign to
the Company any proprietary rights which I may have or acquire in any such
Company-Related Inventions and Developments, and I waive any moral rights or
other special rights which I may have or accrue therein. I agree to execute any
documents and take any actions that may be required to effect and confirm such
transfer and assignment and waiver. The provisions of this Section 4 will apply
to all Company-Related Inventions and Developments which are conceived or
developed during the term of my employment with the Company, whether before or
after the date of this Agreement, and whether or not further development or
reduction to practice may take place after termination of my employment, for
which purpose it will be presumed that any Company-Related Inventions and
Developments conceived by me which are reduced to practice within one year after
termination of my employment were conceived during the term of my employment
with the Company unless I am able to establish a later conception date by clear
and convincing evidence. The provisions of this Section 4 will not apply,
however, to any Inventions and Developments which may be disclosed in a separate
Schedule attached to this Agreement prior to its acceptance by the Company,
representing Inventions and Developments made by me prior to my employment by
the Company.
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5. Disclosure of Inventions and Developments. I agree promptly to
disclose to the Company, or any persons designated by it, all Company-Related
Inventions and Developments which are or may be subject to the provisions of
Section 4.
6. Obtaining and Enforcing Proprietary Rights. I agree to assist the
Company, at the Company's request from time to time and at the Company's
expense, to obtain and enforce patents, copyrights or other proprietary rights
with respect to Company-Related Inventions and Developments in any and all
countries. I will execute all documents reasonably necessary or appropriate for
this purpose. This obligation will survive the termination of my employment,
provided that the Company will compensate me at a reasonable rate after such
termination for time actually spent by me at the Company's request on such
assistance. In the event that the Company is unable for any reason whatsoever to
secure my signature to any document reasonably necessary or appropriate for any
of the foregoing purposes (including renewals, extensions, continuations,
divisions or continuations in part), I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agents and
attorneys-in-fact to act for me and on my behalf, but only for the purpose of
executing and filing any such document and doing all other lawfully permitted
acts to accomplish the foregoing purposes with the same legal force and effect
as if executed by me.
7. Third-Party Agreements and Rights. I represent to the Company that
my execution of this Agreement, my employment with the Company and the
performance of my proposed duties for the Company will violate any obligations I
may have to any previous employer or other party. In my work for the Company, I
will not disclose or make use of any information in violation of any agreements
with or rights of any previous employer or other party, and I will not bring to
the premises of the Company any copies of other tangible embodiments of
non-public information belonging to or obtained from any such previous
employment or other party.
8. Injunction. I agree that it would be difficult to measure any
damages caused to the Company which might result from any breach by me of the
promises set forth in this Agreement, and that in any event money damages would
be an adequate remedy for any such breach. Accordingly, I agree that if I
breach, or propose to breach, any portion of this Agreement, the Company shall
be entitled, in addition to all other remedies that it may have, to an
injunction or other appropriate equitable relief to restrain any such breach
without showing or proving any actual damage to the Company.
9. Binding Effect. This Agreement will be binding upon me and my
heirs, executors, administrators and legal representatives and will inure to the
benefit of the Company, and any subsidiary of the Company, and its and their
respective successors and assigns.
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10. Enforceability. If any portion or provision of this Agreement is
to any extent declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, will not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. In the event that any provision of this
Agreement is determined by any court of competent jurisdiction to be
unenforceable by reason of excessive scope as to geographic, temporal or
functional coverage, such provision will be deemed to extend only over the
maximum geographic, temporal and functional scope as to which it may be
enforceable.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the Company and myself with respect to the subject matter hereof, and
supersedes all prior representations and agreements with respect to such subject
matter. This Agreement may not be amended, modified or waived except by a
written instrument duly executed by the person against whom enforcement of such
amendment, modification or waiver is sought. The failure of any party to require
the performance of any term or obligation of this Agreement, or the waiver by
any party of any breach of this Agreement, in any particular case will not
prevent any subsequent enforcement of such term or obligation or to be deemed a
waiver of any separate or subsequent breach.
12. Notices. Any notices, requests, demands and other communications
provided for by this Agreement will be sufficient if in writing and delivered in
person or sent by registered or certified mail, postage prepaid, to me at the
last address which I have filed in writing with the Company or, in the case of
any notice to the Company, at its main offices, to the attention of its Chief
Executive Officer.
13. Governing Law. This is a Missouri contract and shall be construed
under and be governed in all respects by the laws of the State of Missouri.
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I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. I HAVE READ
IT CAREFULLY AND AM SATISFIED THAT I UNDERSTAND IT COMPLETELY.
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
ACCEPTED AND AGREED TO BY
GOLDEN SKY SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
Date: August 24, 1998
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SCHEDULE OF PRIOR INVENTIONS
Employee Name: Xxxx X. Xxxxx
Date: August 24, 1998
NONE
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
ACCEPTED BY
GOLDEN SKY SYSTEMS, INC.
By: Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
